No. 11-556
In the Supreme Court of the United States
__________
MAETTA VANCE,
Petitioner,
v.
BALL STATE UNIVERSITY,
__________
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit
__________
REPLY BRIEF FOR PETITIONER
__________
DAVID T. GOLDBERG
Donahue & Goldberg,
LLP
99 Hudson Street
8th Floor
New York, NY 10013
(212) 334-8813
DANIEL R. ORTIZ
Counsel of Record
University of Virginia
School of Law
Supreme Court
Litigation Clinic
580 Massie Road
Charlottesville, VA
22903
(434) 924-3127
dro@virginia.edu
i
TABLE OF CONTENTS
Page
Table of Authorities ................................................... ii
Reply Brief For Petitioner .......................................... 1
I. Respondent’s Five Guideposts All Point In The
Wrong Direction ............................................................. 3
II. The Seventh Circuit Rule Is, As Both Parties
Recognize, Indefensible ....................................... 10
A. The Seventh Circuit’s Rule Is Irreconcilable With Faragher And Other
Governing Precedent...................................... 10
B. Even “Considered Fresh,” There Is No
Valid Reason For Adopting The Seventh
Circuit’s Arbitrary Restriction ...................... 12
III. This Court Should Remand For Proper
Application of the Ellerth/Faragher Rule .......... 17
Conclusion ................................................................. 23
ii
TABLE OF AUTHORITIES
Page(s)
Cases:
Allison Engine Co., Inc. v. United States,
553 U.S. 662 (2008) ............................................. 18
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................. 18
Burlington Indus. v. Ellerth,
524 U.S. 742 (1998) ..................................... passim
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006) ............................................... 12
Consol. Rail Corp. v. Gottshall,
512 U.S. 532 (1994) ............................................. 18
DeMarco v. United States,
415 U.S. 449 (1974) (per curiam) ........................ 19
Dinkins v. Charoen Pokphand USA, Inc.,
133 F. Supp. 2d 1254 (M.D. Ala. 2001) ................. 5
Doe v. Oberweis Dairy,
456 F.3d 704 (7th Cir. 2006) ............................... 15
EEOC v. CRST Van Expedited, Inc.,
679 F.3d 657 (8th Cir. 2012) ................................. 6
Faragher v. City of Boca Raton,
524 U.S. 775 (1998) ..................................... passim
Hertz Corp. v. Friend,
130 S. Ct. 1181 (2010) ......................................... 18
Johnson v. California,
543 U.S. 499 (2005) ............................................. 18
Kelley v. S. Pac. Co.,
419 U.S. 318 (1974) ............................................. 18
iii
Cases—Continued:
Page(s)
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992) ........................................... 18
Mack v. Otis Elevator Corp.,
326 F.3d 116 (2d Cir. 2003) ......................... 5, 8, 13
Malat v. Riddell,
383 U.S. 569 (1966) ............................................. 18
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ............................... 17
Mikels v. City of Durham,
183 F.3d 323 (4th Cir. 1999) ................................. 7
Pa. State Police v. Suders,
542 U.S. 129 (2004) ............................................... 8
Phelan v. Cook Cnty.,
463 F.3d 773 (7th Cir. 2006) ............................... 16
Pullman-Standard v. Swint,
456 U.S. 273 (1982) ............................................. 19
Rapanos v. United States,
547 U.S. 715 (2006) ............................................. 18
Rhodes v. Ill. Dept. of Transp.,
359 F.3d 498 (7th Cir. 2004) ......................... 16, 17
Staub v. Proctor Hosp.,
131 S. Ct. 1186 (2011) ......................................... 12
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308 (2007) ............................................. 18
United States v. Hasting,
461 U.S. 499 (1983) ............................................. 19
Whitten v. Fred’s, Inc.,
601 F.3d 231 (4th Cir. 2010) ............................. 5, 6
iv
Cases—Continued:
Page(s)
Zivotofsky v. Clinton,
132 S. Ct. 1421 (2012) ....................................18-19
Miscellaneous:
Equal Emp’t Opportunity Comm’n, Enforcement
Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors (1999),
1999 WL 33305874 ................................................ 3
Fed. R. Civ. P. 56(a) .................................................. 22
Fed. R. Civ. P. 56(f) ................................................... 20
2 Restatement (Third) of Agency § 703 (2006) .......... 6
1
REPLY BRIEF FOR PETITIONER
______________________
In its brief, Ball State University (BSU)
recognizes that the rule of law it urged and prevailed
on below, which limits vicarious liability under
Faragher and Ellerth to those supervisors who can
take tangible employment actions against those they
harass, cannot stand. See Resp. Br. 1, 15, 16, 27, 28.
It further concedes—repeatedly—that vicarious
liability “may be triggered when the harassing
employee has the authority to control the victim’s
daily work activities.” Id. at 1-2; see also, e.g., id. at
15, 19, 24, 26, 27, 28. And it recognizes that “[t]he
test for supervisory authority is always met when an
employee has the power to * * * recommend tangible
employment actions against the victim,” id. at 25
(emphasis added), in flat disagreement with Seventh
and Eighth Circuit precedent, which hold that such
power is never sufficient.
BSU’s brief does not merely disavow the Seventh
Circuit’s rule, but affirmatively discredits it. That
rule cannot stand, BSU explains, because it is
unwarranted “[u]nder the agency principles that this
Court has held govern Title VII vicarious liability,”
Resp. Br. 1, is “difficult to square” with Faragher,
ibid., and with “strong[] sugges[tions]” in this Court’s
other precedents, id. at 26; and is at odds with the
“common sense meaning of ‘supervisor,’” ibid.
Indeed, BSU not only recognizes the deficiencies
of the Seventh Circuit’s rule, but also announces its
agreement with petitioner (and the United States) as
to “the basic standard for supervisory status,” Resp.
Br. 31, which it describes as whether the harasser’s
2
employer-given authority over the victim “materially
enables the harassment,” e.g., id. at 2, 15, 16, 19, 24;
cf. Pet. Br. 45-46 (urging adoption of Second Circuit’s
“enables or materially augments” standard). Given
these developments, the course for this Court is wellmarked: to answer the question presented by
rejecting the Seventh Circuit’s spurious rule and then
to remand for the courts below to apply the correct
standard.
But BSU proposes something quite different. Lest
lower courts receive the wrong “signal,” Resp. Br. 53,
it would have this Court comb through the summary
judgment record and itself attempt to apply the
correct legal standard to the facts. BSU also qualifies
its agreement on the governing standard by
enumerating a list of “limiting principles” or
“guideposts,” id. at 31, that it insists the Court must
announce to keep vicarious liability within
“meaningful” bounds, provide necessary “clarity,” and
“vindicat[e]” the “fundamental” rules established in
its prior precedents, id. at 38.
This Court should rebuff these requests. There is
no need for this Court either to engage in
extrajudicial signaling or to arbitrarily restrict the
“enables or materially augments” standard for
supervisory liability. The “limiting principles” BSU
presses are hardly principled; they are certainly not
supported (and in important respects are refuted) by
precedent and agency law; and they are obviously
reverse-engineered to ease the way for respondent’s
plea for a Supreme-Court-level summary judgment
proceeding in this one case.
3
I. Respondent’s Five Guideposts All Point In
The Wrong Direction
BSU’s “limiting principles” share two features.
First, none is a limiting principle rooted in existing
case law and necessary to clarify the correct legal
standard. Some involve unexceptionally relevant
considerations; some are logical inversions of valid
propositions; and some would produce precisely the
kind of uncertainty that BSU claims must be avoided.
Second, each, like the gun that hangs on the wall in a
play’s first act, makes a suspiciously timely and
useful reappearance in BSU’s final summary
judgment argument. The need they are said to serve,
moreover, is illusory. The danger that employers will
be held automatically liable for all employees’ (or
even all supervisors’) actionable harassment was
foreclosed by Ellerth and Faragher’s recognition of an
affirmative defense. See pp. 13-14, infra.
1. BSU’s first guidepost states that the
“supervisory inquiry turns on a careful consideration
of the facts and realities of the situation, not on titles,
formal job descriptions, or labels.” Resp. Br. 31.
Petitioner agrees that “titles” and “labels” should not
be determinative. A harassing “team leader” may
have genuine authority over his victim in one
workplace, but not in another, and a “supervisor” is
not always his victim’s supervisor. But it is notable
that the EEOC Guidance says nothing disparaging
about “job descriptions,” as opposed to “titles” and
“labels,” Equal Emp’t Opportunity Comm’n,
Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors (1999), 1999
WL 33305874, and it is hard not to see this
“principle” as anything other than an attempt on
4
BSU’s part to blunt the clear implication of its own
job descriptions: that Davis supervised Vance. After
all, BSU’s description of Davis’s position, “Catering
Specialist,” (1) lists under “[p]ositions [s]upervised”
the roles of “Kitchen Assistants and Substitutes,”
which included Vance’s job position from 2007 until
2009; (2) states that the “[p]osition [f]unction * * *
requires leadership of * * * part-time, substitute, and
student employees,” which covers Vance’s position
before 2007; and (3) specifically lists “[l]ead[ing] and
direct[ing these same] part-time, substitute, and
student
employee[s]”
among
Davis’s
“[d]uties/[r]esponsibilities.” J.A. 12-13. The “[p]osition [d]escription” also notes, moreover, that it
indicates only some examples of the position’s
supervisorial authority, not its full reach. J.A. 12
(“This description * * * indicate[s] the kinds of duties
* * * required [and] is not intended to limit the right
of any supervisor to assign, direct and control the
work of an employee under his/her supervision.”)
(italics omitted).
Job descriptions, unlike labels or titles, are highly
probative of one employee’s actual authority over
another. See, e.g., Chamber of Commerce of the
United States of America Amicus Br. 21 (Chamber
Amicus Br.). They are written by employers to
provide exactly “the kind of clarity” that BSU and its
amici insist is “necessary to put employers and
employees on notice of their legal rights and
obligations.” Resp. Br. 38; see also Chamber Amicus
Br. 6-7.
2. BSU’s second “limiting principle” would require
that “an employee’s authority to control the victim’s
daily work activities * * * include the power either to
5
materially increase the victim’s workload, or to
assign the victim truly undesirable tasks.” Resp. Br.
32. Here too the “lower court case law” that BSU
cites, Resp. Br. 16, recognizes these as relevant
considerations in making supervisor determinations,
but not criteria for exclusion. Mack v. Otis Elevator
Corp., 326 F.3d 116 (2d Cir. 2003), for example, did
not, as BSU asserts, Resp. Br. 33, “require[]” these
particular powers, but rather indicated that
supervisory liability would apply (notwithstanding
the lack of hiring or firing power) “if” they were
present, Mack, 326 F.3d at 126-127 (emphasis added)
(quoting Dinkins v. Charoen Pokphand USA, Inc.,
133 F. Supp. 2d 1254, 1266 (M.D. Ala. 2001)).
Indeed, the very same sentence indicates that
“authority to ‘affect [the victim’s] daily work
activities’” would also suffice. Ibid. (quotation
omitted).
Were this “guidepost” part of the rule, it would
exclude many situations where one employee’s
authority over another enables or materially
augments harassment.
As the Fourth Circuit
recognized in Whitten v. Fred’s, Inc., 601 F.3d 231,
246 (4th Cir. 2010), for example, the power to set a
subordinate’s schedule should weigh heavily in
determining someone’s supervisory status. “Unlike a
mere co-worker,” the court noted,
[the harasser] could change [the victim’s] schedule
* * * on a whim. And he in fact did so, making her
stay late * * * and directing her to work on a
Sunday that was supposed to be her day off. [He]
therefore had power and authority that made
[her] vulnerable to his conduct in ways that
comparable conduct by a mere co-worker would
6
not. [His] authority over [her] thus aided his
harassment and enabled him to create a hostile
working environment.
Ibid. (internal quotation marks and citations
omitted).
This “guidepost” would also exclude
situations where a supervisor has the power to
control the physical location of another employee,
enabling him to subject her to abuse without worry
that others would notice or interfere, cf. id. at 236
(describing power of supervisor to “call[ victim] into
the storeroom in the back of the store”), or to
humiliate her, see EEOC v. CRST Van Expedited,
Inc., 679 F.3d 657, 687-688 (8th Cir. 2012) (describing
power of lead truck driver to determine that trainee
must urinate in a public parking lot rather than in a
bathroom at a truck rest stop).
3. BSU’s next “principle” holds that an “employer is
not liable when the victim is unaware of a
supervisor’s authority to control her daily activities.”
Resp. Br. 35. This is less a response to any realworld need for “clarification” and more a ham-fisted
attempt to set the scene for BSU’s later use of Vance’s
statement, misleadingly wrenched from its context in
the record, that she did not “know” when Davis was a
“supervisor,” see pp. 21-22, infra. But as an abstract
proposition, it is almost surely wrong. First, agency
law principles treat actual and apparent authority as
alternative grounds for imputing responsibility.
Either is sufficient and neither is necessary. See 2
Restatement (Third) of Agency § 703 (2006). And in
the real world, a supervisor who knows he has
employer-conferred authority over a subordinate may
well be emboldened in his harassment whether or not
the victim is aware (or certain) of his power. Indeed,
7
this “principle” would seem to apply equally to
harassers with unknown or incompletely understood
powers to take tangible employment actions and
would thus license defendants to fish for evidence of a
victim’s subjective understandings even under the
Seventh Circuit’s rule, thereby destroying the ex ante
clarity that respondent and amici protest is essential.
Respondent buries in the same section of its brief
an unrelated argument that a victim’s “willingness to
resist can establish that the harasser’s authority did
not materially enable the harassment.” Resp. Br. 36.
Unlike its other “principles,” this one can claim
support in the one lower court decision cited, Mikels
v. City of Durham, 183 F.3d 323, 333 (4th Cir. 1999),
but it is an approach especially deserving of this
Court’s rejection. It would make the “supervisor”
determination depend on the sturdiness and courage
of the individual victim. It would not only sacrifice
respondent and its amici’s purportedly cardinal
virtue of ex ante clarity but would also violate the
principles of Ellerth and Faragher by placing victims
in a Catch-22.
Victims who resist by formally
complaining would, under BSU’s logic, undercut any
argument that their harassers were their
supervisors. Yet, if they did not officially complain,
the employer could escape liability by asserting the
Ellerth/Faragher affirmative defense.
4. BSU’s next guidepost would make “the extent
to which the victim has on-the-scene access to her
chain-of-command or whether the alleged harasser is
the highest-ranking employee on-site” a “key factor”
in determining whether the harasser is her
supervisor. Resp. Br. 37. Stated as a “factor,” this is
unexceptionable and, in fact, supports Vance’s claim.
8
The division head’s absence from the kitchen, see J.A.
51, 78, and prolonged vacancies in the Chef and
Catering Specialist positions, see J.A. 78, made Davis
more threatening.
Cf. Mack, 326 F.3d at 125
(recognizing that the harasser’s authority over his
target was augmented by the absence of a more
senior employee). Stated as a prerequisite, however,
as BSU suggests it, this guidepost is surely wrong.
In Pennsylvania State Police v. Suders, 542 U.S. 129
(2004), for example, this Court recognized that Title
VII applied supervisory liability standards not only to
the actions of the highest-ranking employee on-site,
the “Station Commander,” but also to those of two
lower “supervisors.” Id. at 134. The lack of on-site
recourse may make harassment worse, but on-site
availability of higher-ranking supervisors does not
mean that lower-level supervisors’ powers over their
victims do not aid their harassment.
5. BSU’s final proposed guidepost, one pressed
expansively by its amici, holds that “if an employee is
only temporarily authorized to direct the daily work
activities of another, the employer is vicariously
liable only for unlawful harassment that occurs
during that temporary period.” Resp. Br. 37 (quoting
U.S. Br. 28). Respondent supports its argument in
only a single sentence that it deems “obviously”
correct: “Supervisory authority that the harasser does
not possess when he commits the harassment
obviously cannot materially enable that same
harassment.” Ibid.
Pace respondent, that claim is demonstrably false.
Supervisory authority that the harasser will enjoy
over his victim in the future can enable or materially
augment his harassment of her in the present. If a
9
victim knows that another employee can assign her to
“clean the toilets,” Faragher, 524 U.S. at 780,
tomorrow, she will fear that employee’s power today.
Several of respondent’s amici take this nexus
argument further still, insisting that vicarious
liability should be limited to harassment that was
both perpetrated by the victim’s supervisor and
“aided by his [supervisory] relationship.” See, e.g.,
Amicus Br. of American Council on Education 18
(arguing that plaintiffs should be required to show
the “existence of a nexus between the harasser’s
authority and the resulting harassment”). Such a
rule would have two effects. A company president
who repeatedly scribbled a swastika on his Jewish
employee’s locker would be considered a “co-worker”
because a common worker could do the same and a
supervisor who had the power to make another
employee “clean the toilets for a year,” Faragher, 524
U.S. at 780, would be considered a “co-worker” so long
as he did not make that threat explicit. But Faragher
expressly rejected “requiring active or affirmative, as
distinct from passive or implicit, misuse of
supervisory authority,”
id. at 804, in large part
because requiring it would destroy the clarity that
BSU and its amici insist is so important and make
“the temptation to litigate * * * hard to resist,” id. at
805. “[P]laintiffs and defendants alike,” the Court
noted, “would be poorly served by an active-use [of
authority] rule.” Ibid. The proper way to accommodate the employer’s interests, it held, was Ellerth’s
affirmative defense. Id. at 805-808.
The Court should reject all of BSU’s carefully
gerrymandered “guideposts.”
They not only are
unnecessary but, in fact, disserve the very interest in
10
predictability that BSU and its amici assert is
“critical.” Resp. Br. 38; see, e.g., Chamber Amicus Br.
6.
II. The Seventh Circuit Rule Is, As Both Parties
Recognize, Indefensible
While BSU now rejects the rule of law on which it
prevailed below, some of its amici argue that the
Seventh Circuit’s rule is correct. These amici do not
grapple with the many legal deficiencies identified in
petitioner’s opening brief, that of the United States,
and, most notably, the brief of respondent. Indeed,
their “arguments” are remarkably thin, consisting of
(1) a purported demonstration that the Seventh
Circuit rule is not “foreclosed” by the holding in
Faragher and (2) many pages of often facially
implausible ipse dixit about the benefits of the clarity
the Seventh Circuit’s rule would supposedly provide.
A. The Seventh Circuit’s Rule Is Irreconcilable
With Faragher And Other Governing
Precedent
1. Rather than contend that this Court’s decisions
in Faragher and Ellerth actually support the Seventh
Circuit’s test, the most prominent amicus proponent
of that rule, the U.S. Chamber of Commerce, argues a
much smaller point: that this Court’s disposition in
Faragher, directing judgment under the newlyformulated supervisor rule for harassment by
Silverman, who lacked any power to take tangible
employment actions, “does not preclude” the Seventh
Circuit rule because the employer in that case did not
dispute that Silverman was a “supervisor.” Chamber
Amicus Br. 17.
11
That proposition is, on its own narrow terms,
somewhat arresting. According to the Chamber, this
Court would have granted judgment to the City of
Boca Raton on the issue of its vicarious liability for
Silverman’s harassment if only it had claimed
Silverman was not a “supervisor.”
That argument has no merit.
The question
whether the actions of Silverman and Terry gave rise
to employer liability, that is, whether they were
“supervisors” under Ellerth and Faragher, did not
“lurk” in the background of the case, as the chief
amicus claims. Chamber Amicus Br. 19. It was full
front and center. This Court did not answer the
abstract legal question of how to treat harassment by
“supervisors” and then assume its rule applied to
whomever the parties or lower courts assumed met
that description. On the contrary, the Court’s opinion
made clear that the particular facts of the case were
“circumstances under which [the] employer may be
held liable under Title VII.” Faragher, 524 U.S. at
780. The Court set out in precise detail the authority
over Ms. Faragher that the employer had given—and
not given—each harasser; it developed, explained,
and applied its rule with reference to the workplace
authority both employees possessed; and it directed
judgment against the employer based on these
individuals’ particular supervisory powers.
The Court’s acceptance in Faragher that Terry
and Silverman were “supervisors” indicates no
casualness on its part, but rather confirms that it did
not intend “supervisor” to be a narrow term of art.
As the facts of that case vividly illustrate, a superior’s
power to direct a subordinate’s daily work activities,
12
like the power to hire or fire her or set her wages, can
enable or materially augment invidious harassment.
2. Regardless whether the holding in Faragher
dooms the Seventh Circuit rule, the reasoning of that
case, of Ellerth, and of subsequent decisions certainly
does. As petitioner, respondent, and the United
States agree, supervisory liability should extend
equally to those who oversee their victims every day
and to those who can hire or fire them. Both have
employer-conferred
power
to
coerce
their
subordinates’ obedience and deter complaint. And as
petitioner has explained, Pet. Br. 34-37, this Court’s
later decisions in Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006), and Staub v. Proctor
Hosp., 131 S. Ct. 1186 (2011), make that even
plainer. Actionable harassment by a supervisor who
has power to take actions that would “dissuade[ his
victim] * * * from making or supporting a charge of
discrimination,” Burlington N., 548 U.S. at 68
(citations omitted), implicates the central concerns of
the Faragher/Ellerth rule, as does harassment by one
who can effectively recommend, but not personally
effect, his subordinate’s termination, see Staub, 131
S. Ct. at 1193.
B. Even “Considered Fresh,” There Is No Valid
Reason For Adopting The Seventh Circuit’s
Arbitrary Restriction
Even “consider[ed] fresh,” Chamber Amicus Br. 4,
there is no reason to adopt the Seventh Circuit’s rule
and many good reasons to reject it. Amici’s attempts
to support the rule consist largely of dramatic
assertions about the consequences of adopting the
Second Circuit’s “enable or materially augment”
standard. That standard, they argue, will expose
13
employers to “automatic liability” for “alleged
harassment” and “provide employers virtually no
guidance” and “little incentive to undertake
prevention efforts.” Id. at 3, 20. By contrast, the
Seventh Circuit rule, they insist, will enable
employers to “identify” precisely that subset of
supervisors whose harassment would trigger
vicarious liability and thus permit employers to direct
scarce “screening, training, and monitoring” to
“where they will do the most good.” Id. at 5, 10.
1. Many of these claims are implausible and
illogical on their face and none has any empirical
support. Respondent’s amici offer no evidence that
what they insist would happen, were the Seventh
Circuit rule rejected, actually has happened in the
many years the EEOC Guidance and Second Circuit
rule have been in place. They cite no evidence that
Title VII hostile environment cases have flooded
district courts in the Second Circuit; that litigation
there has been more complex than in the Seventh
Circuit; or that employers’ prevention efforts are less
effective there. And amici identify no actual Second
Circuit decision that illustrates the many vices they
claim attend the Second Circuit rule. No employer
has, in fact, sought this Court’s review of a Second
Circuit decision since Mack, 326 F.3d 116, cert.
denied, 540 U.S. 1016 (2003).
The reasons why respondent can offer no evidence
or case support are many. First, because employer
responsibility is only one element of a hostile
environment claim, even adopting the most
employee-friendly “supervisor” rule would not induce
plaintiffs to file frivolous suits. Second, Ellerth and
Faragher’s affirmative defense provides employers
14
great protection. To avoid liability for harassment by
a supervisor who took no tangible employment
actions against his victim, the employer need show
only “(a) that [it] exercised reasonable care to prevent
and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Ellerth, 524
U.S. at 765; Faragher, 524 U.S. at 807. Third, the
Seventh Circuit rule lacks many of the virtues
respondent’s amici attribute to it. In particular, it
hardly streamlines litigation. As the Chamber itself
recognizes, in cases where the harasser is deemed a
“co-worker” rather than a “supervisor,” courts must
“proceed to determine whether the plaintiff has
proven the employer’s negligence.” Chamber Amicus
Br. 14. That inquiry is more, not less, complex than
imputing vicarious liability.
2. The Chamber’s only real argument in favor of
the Seventh Circuit rule is that its “bright-line * * *
provid[es] employers with clear guidance as to who
wields the power that, if abused, may subject
employers to automatic liability [and thereby gives
employers] more incentive to screen, train, and
monitor those employees, and to do so effectively.”
Chamber Amicus Br. 3. That argument, however,
cannot withstand scrutiny. First, it defies common
sense that a standard making it harder for victims to
recover for actionable harassment by those who wield
power over them would provide employers with a
greater “incentive” to take care that those with
employer-conferred power wield it appropriately.
15
Second, the Seventh Circuit rule does not provide
the “bright-line” clarity that respondent’s amici
believe it does. The Seventh Circuit has noted that
under its rule the negligence standard “implicitly
impose[s] on the employer a higher duty of care to
protect its employees against those employees whom
the employer has armed with authority, even if it is
less than the authority that triggers the employer’s
strict liability” for harassment by a “supervisor.” Doe
v. Oberweis Dairy, 456 F.3d 704, 717 (7th Cir. 2006)
(emphasis added). “How much greater [care],” it
added, “will normally be a jury question.” Ibid. This
ex post jury-determined sliding scale of duty hardly
provides the ex ante clarity amici claim for the
Seventh Circuit rule.
Third, respondent’s amici’s argument rests on an
unfounded assumption: that the Seventh Circuit rule
identifies “those employees most likely to wield, and
potentially abuse, the ‘official power of the
enterprise.’”
Chamber Amicus Br. 5 (quoting
Faragher, 524 U.S. at 762). The reverse is true, in
fact.
The Seventh Circuit rule identifies only
employees who have the power to take tangible
employment actions against others. They may work
in distant human resources departments and have no
day-to-day contact with or even know those below
them in the field. On the other hand, the rule
excludes those superiors who do have daily contact
with their subordinates and can command their
presence and retaliate against them through
unpleasant assignments or scheduling. Surely the
latter, not the former, represent the greater concern.
They, after all, have much more opportunity and
effective power to harass and are thus “mo[re] likely
16
to abuse the official power of the enterprise.” Id. at
10.
Fourth, amici’s argument rests on a further
unfounded assumption: that the Second Circuit rule
would lead to “scattershot compliance measures
inevitably * * * less effective than * * * more
thorough compliance measures aimed at * * *
traditional supervisors.” Chamber Amicus Br. 10.
They offer no evidence that employer compliance
measures in the Seventh Circuit are “more thorough”
and less “scattershot” than in the Second. And there
is no reason why they should be. Supervisors of any
stripe require no extensive, highly specialized
training to refrain from harassing their subordinates.
Furthermore, the clarity amici seek would come at
some cost. It would lead employers to take action not
necessarily to prevent harassment, but to prevent
liability. By reserving the power to take tangible
employment actions to individuals in central
headquarters, employers could easily insulate
themselves from liability for harassment by
supervisors in the field. As several Seventh Circuit
judges have noted,
to the extent that employers with multiple
worksites vest the managers of such sites with
substantial authority and discretion to run them
but reserve formal employment authority to a few
individuals at central headquarters, our standard
may have the practical, if unintended, effect of
insulating employers from liability for harassment
perpetrated by their managers.
Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 510
(7th Cir. 2004) (Rovner, J., specially concurring); see
17
Phelan v. Cook Cnty., 463 F.3d 77, 784 (7th Cir. 2006)
(criticizing as “an odd result [that] an employer could
escape the possibility of strict liability for supervisor
harassment simply by scattering supervisory
responsibilities amongst a number of individuals,
creating a Title VII supervisory Hydra”).
3. It is hard to know what to make of amici’s bold
claim that the Seventh Circuit rule better reflects
“[t]he realities of today’s workplace.”
Chamber
Amicus Br. 6. Although judges on the Seventh
Circuit itself have applied the rule as a matter of
stare decisis, they have criticized it, in fact, for “not
comport[ing] with the realities of the workplace.”
Rhodes, 359 F.3d at 510 (Rovner, J., concurring in
part and concurring in judgment). And surely any
increasing diversity of workplace arrangements,
Chamber Amicus Br. 5, would favor a rule that looks
to the amount, not the formal type, of power the
employer has given the harasser over his victim.
III. This Court Should Remand For Proper
Application Of The Ellerth/Faragher Rule
Despite conceding that the courts below applied
the wrong legal standard, BSU implores this Court to
send a “signal” by itself applying the new legal
standard to the record developed under the erroneous
one. Resp. Br. 53. This Court does not, however,
ordinarily apply new legal rules to uncertain facts,
scour records, and consider summary judgment
motions in the first instance, let alone send
“signal[s].” It decides the law, see Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and
should reject BSU’s request for extrajudicial succor.
18
When this Court determines that a case was
litigated and decided under an incorrect legal
standard, it nearly always remands for the lower
courts to apply the newly adopted legal standard.
See generally Malat v. Riddell, 383 U.S. 569, 572
(1966) (“Since the courts below applied an incorrect
legal standard, we do not consider whether the result
would be supportable on the facts of this case had the
correct one been applied. * * * [T]he appropriate
disposition is to remand the case to the District
Court, for fresh fact-findings, addressed to the statute
as we have now construed it.”); see also, e.g., Allison
Engine Co., Inc. v. United States, 553 U.S. 662, 673
(2008); Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 329 (2007); Rapanos v. United States,
547 U.S. 715, 757 (2006) (opinion of Scalia, J.);
Johnson v. California, 543 U.S. 499, 515 (2005);
Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 557-558
(1994); Lucas v. S.C. Coastal Council, 505 U.S. 1003,
1032 (1992); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 257 (1986); accord U.S. Br. 32 (collecting cases)
(“The Court’s usual practice * * * is to remand to the
lower courts to apply the correct standard as
announced by this Court.”).
Remanding after adopting a new legal standard is
the customary practice for two good reasons: it serves
“the ends of justice,” Kelley v. S. Pac. Co., 419 U.S.
318, 333 (1974) (Stewart, J., concurring in judgment),
by ensuring that the parties have a fair opportunity
to litigate their case under the correct legal
framework, see Hertz Corp. v. Friend, 130 S. Ct.
1181, 1195 (2010), and it promotes “the efficient
allocation of judicial resources,” Kelley, 419 U.S. at
333. This Court “is a court of final review and not
first view,” Zivotofsky v. Clinton, 132 S. Ct. 1421,
19
1430 (2012) (citation omitted), and “factfinding is the
basic responsibility of district courts, rather than
appellate courts,” DeMarco v. United States, 415 U.S.
449, 450 n.* (1974) (per curiam). “As a practical
matter,” moreover, “it is impossible for any member
of this Court to make the kind of conscientious and
detailed examination of the record that” a district
court would. United States v. Hasting, 461 U.S. 499,
517 (1983) (Stevens, J., concurring in judgment).
And, practical considerations aside, it can “insult
* * * the Court of Appeals to imply * * * that it cannot
be trusted with a task that would normally be
conducted on remand.” Ibid.
Remand is especially appropriate when, as here,
the record was developed under an “erroneous view of
the law.” Pullman-Standard v. Swint, 456 U.S. 273,
291 (1982); see also id. at 300 (Marshall, J.,
dissenting) (“Having found that the District Court's
findings * * * were made under an erroneous view of
controlling legal principles, the Court of Appeals was
compelled to set aside those findings.”). Indeed, that
rule exists because it is impossible for the reviewing
court to be confident that legal error did not affect the
record in any given case. Remanding leaves such
determinations to the courts best positioned to make
them and preserves their discretion to permit parties
to supplement the record. See Ellerth, 524 U.S. at
766 (“On remand, the District Court will have the
opportunity to decide whether it would be
appropriate to allow Ellerth to amend her pleading or
supplement her discovery.”).
To be sure, this Court does not lack the power to
affirm a judgment after rejecting the legal standard
on which it was based—or even to do so on a ground
20
that was not argued or considered below.
But
instances of it exercising that power are rare and
reserved for exceptional circumstances. Respondent’s
paucity of supporting authority is unsurprising. Fed.
R. Civ. P. 56(f) forbids district courts from “grant[ing
summary judgment] on grounds not raised by a
party” without first giving the non-moving party
“notice and a reasonable time to respond.”
Respondent asks this Court, however, to do exactly
what the district court itself could not do—to grant
summary judgment under a new legal rule when the
facts are highly disputed and were not developed
under that standard. This Court should not accept
its invitation.
Because BSU’s original summary judgment brief
offered scant argument that Davis was not Vance’s
supervisor under even the incorrect legal standard,
remand is particularly appropriate. BSU’s opening
brief in support of summary judgment is thirty-five
pages long. Of those pages, BSU’s whole argument
that Davis did not supervise Vance consists of a
single textual sentence stating that “Saundra Davis
is not a supervisor,” Defs.’ Br. Supp. Summ. J. 30,
and a footnote that references the Seventh Circuit’s
standard, id. at 30 n.12. Its reply brief, addressing
evidence Vance raised in opposition that Davis did
indeed supervise her, concedes that Davis “le[]d and
direct[ed] by * * * [o]versight,” Defs.’ Opp. to Pltf.’s
Cross-Mot. for Summ. J. and Reply Br. in Supp. of
Mot. for Summ. J. 17 (internal quotation marks
omitted) (Defs.’ Summ. J. Reply), but argues that
“[n]o part of [Davis’s job] description includes the
power to hire, fire, demote, promote, transfer, or
discipline an employee, which are the essential
functions of a supervisor as a matter of law,” ibid.
21
(citation omitted). The sum total of BSU’s argument
for summary judgment on this point, in other words,
was that Seventh Circuit precedent foreclosed Davis
from being considered Vance’s supervisor no matter
how much day-to-day leading and direction through
oversight Davis performed.
BSU’s primary argument against remand in this
Court rests on five words plucked from petitioner’s
approximately 23,000-word deposition. See Resp. Br.
52 (arguing that “petitioner has already testified that
she ‘d[id] not know’ and was ‘not sure’ whether Davis
was her supervisor”) (quoting J.A. 197-198)
(emphasis added). When asked during her deposition
whether “Saundra Davis is your supervisor,” Vance
replied “one day she’s a supervisor; one day she’s not.
One day she’s to tell people what to do, and one day
she’s not. It’s inconsistent. So I don’t know what she
is.” J.A. 197. When asked further “are you telling me
that at times, intermittently, once in a while, she was
your supervisor, or she was the supervisor of others
or -- I’m not sure what your answer is,” she responded
“[the employees a]re not sure either.” Id. at 198. And
when asked “You don’t know if she was or wasn’t
your supervisor,” she explained “No. Because Bill
[Kimes, the division head,] said one day she is and
one day she’s not.” Ibid. The context from which
BSU wrenches Vance’s words reveals that she was
trying to respond as carefully and accurately as
possible and, in particular, trying to understand what
BSU’s lawyer meant by the question. She was
unsure of what technical nomenclature to apply to
Davis for two reasons: (1) because some days Davis
would “tell people what to do” and some days she
would not (Vance never indicated, moreover, that on
those latter occasions Davis did not have authority to
22
“tell people what to do”), and (2) because Kimes, the
head of the division, told all employees that Davis
was their supervisor on some occasions and not
others.
Far from indicating uncertainty over
whether Davis could and did supervise her, her full
testimony indicates that Davis could and often did.
BSU’s reliance on this excerpt is not only
surprising, but also newfound. It never argued that
Vance “‘d[id] not know’ and was ‘not sure’ whether
Davis was her supervisor,” Resp. Br. 52, before either
the district court, see Defs.’ Br. Supp. Summ. J. 30;
Defs.’ Summ. J. Reply 17, or the court of appeals, see
Resp. C.A. Br. 33.
While it is improper for BSU to ask this Court for
summary judgment on a ground not argued below
and for petitioner to exhaustively marshal record
evidence to oppose it, petitioner would point out that
even a cursory examination of the record reveals a
“genuine dispute as to * * * material fact,” Fed. R.
Civ. P. 56(a), that would preclude summary
judgment. Consider evidence from just three of the
many sources in the present record. First, BSU’s own
description of Davis’s position clearly gave her the
power to oversee and direct Vance during the time
both served in the kitchen, see p. 4, supra, as BSU
conceded in the district court, see id. at 20; Defs.’
Summ. J. Reply 17 (conceding Davis “le[]d and
direct[ed Vance] by * * * oversight”). Second, Kimes,
the head of Vance and Davis’s division, stated (1) that
Davis “ha[d] given direction” to Vance, J.A. 67, (2)
that he knew that “Davis * * * delegat[ed] jobs to
[Vance] in the kitchen,” Ball State Internal
Documentation Form, Dkt. No. 59-16, at 2, (3) that
Davis “direct[ed] and le[]d” other employees in the
23
kitchen, J.A. 367, and (4) that Davis’s status as
kitchen management was “complicated” because after
Vance filed her complaint he could no longer “have
[Davis] directing certain people. I mean, I can’t have
her directing Maetta [Vance],” ibid. In his deposition,
Kimes resisted characterizing Davis as a “supervisor”
only because he carefully parsed “the difference
between directing, leading and supervising,” ibid.,
and believed that Davis did not meet the Seventh
Circuit’s standard for the last term, ibid.
(“Supervising is * * * an authority to discipline.”).
Third, Vance repeatedly described Davis as her
supervisor even before she filed her suit. See J.A. 28
(stating that “Davis * * * came back as a supervisor
only to start the intimidation again”); id. at 45
(listing Davis as a “Kitchen Supervisor”). Such
evidence is non-exhaustive but sufficient to preclude
summary judgment.
Conclusion
The judgment of the court of appeals should be
reversed and the case remanded for further
proceedings.
24
Respectfully submitted.
DAVID T. GOLDBERG
Donahue & Goldberg,
LLP
99 Hudson Street
8th Floor
New York, NY 10013
(212) 334-8813
November 2012
DANIEL R. ORTIZ
Counsel of Record
for Petitioner
University of Virginia
School of Law
Supreme Court
Litigation Clinic
580 Massie Road
Charlottesville, VA
22903
(434) 924-3127
dro@virginia.edu